Goondiwindi Regional Council v Tait

[2020] HCATrans 192

[2020] HCATrans 192

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B40 of 2020

B e t w e e n -

GOONDIWINDI REGIONAL COUNCIL

Applicant

and

PAULA TAIT

Respondent

Application for special leave to appeal

NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 13 NOVEMBER 2020, AT 10.27 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC:  May it please the Court, I appear with my learned friends, MR K.N. WILSON, QC and MS N.A. WOOTTON, for the applicant.  (instructed by King & Company Solicitors)

MR S.C. HOLT, QC:  May it please the Court, I appear with my learned friend, MR R.J. LYNCH, for the respondent.  (instructed by Shine Lawyers)

NETTLE J:   Yes, Mr Walker.

MR WALKER:   Your Honours, there was, by most of the States and Territories in the country, a legislative response to the decision and reasoning of this Court in Brodie in 2001. In Queensland, that response was largely to be seen in section 37 of the Civil Liability Act 2003 that your Honours will find at page 81 of the application book, slightly different wording as to the critical provisions that was enacted by New South Wales, the Australian Capital Territory, Tasmania and Western Australia.  The difference, largely, has to do with subsection (1) rather than what, in the Queensland version, is subsection (2) concerning the disapplication provision.

It is our submission that, given the importance of legislative responses to the common law, given the social and economic significance of responsibility for road maintenance and the obvious social phenomenon of the need for appropriate compensation – the wrongs in relation to it – this is a case fit for special leave for a number of reasons.

First, and negatively, there are not complicated facts.  They are straightforward.  The unfortunate plaintiff was injured by encountering a pothole which produced the accident.  The pothole was produced by the well‑known, that is, familiar, phenomenon of water across a road, temporary flooding or with inundation, initiated by a process which over time – and as the water recedes and as traffic resumes – leads to the predictable development in the places that are not themselves predictably located of potholes, some of which will become dangerously large.

There was in section 37, as your Honours will have seen, a primary rule pronounced which can be seen to have taken an opposite direction from the tendency in Brodie to abolish and to assimilate to the general law of negligence former doctrines concerning misfeasance and non‑feasance.  Your Honours will see in particular that the general rule is expressed in, for Queensland, very comprehensive terms:

not liable . . . for any failure . . . in relation to any function it has as a road authority—

(a)to repair a road or to keep a road in repair; or

(b)to inspect a road for the purpose of deciding the need to repair –

et cetera.  In our submission, the error in outcome and in reasoning, disparate as it was, in the Queensland Court of Appeal, was to fail to have proper regard for the primacy of that as the rule intended to operate in light of the common law as it had been then recently determined by this Court. 

It follows that, in our submission, the main failure on the part of both the quite different sets of reasons, the two judgments with which we are concerned, is that the subsection (2) disapplication provision was, on the approach ultimately taken, narrowly in common by each of those sets of reasons far too large an inroad into the general rule to be plausible as a legislative reading, or appropriate purposively in its application to the facts of this not unusual kind of case. 

Your Honours, the division of opinion in the Court of Appeal, as your Honours will have seen, can be briefly but not completely described by attributing to Justice Morrison - you will find the culmination at application book 55 in paragraphs [73] and [74] - a principle basis for the decision that the careless erection of the warning signs of water over the road and the like was the commencement of the maintenance of the road which had been committed to the Council by a statutorily authorised contract.  Now, that led into familiar common law tort territory, bearing in mind cases such as Voli v Inglewood. 

The statute in question is the road – the contract in question is the road maintenance performance contract which is authorised to be entered into by section 29(1) and which is then the subject of stipulations in the other subsections of section 29 of the Transport Infrastructure Act 1974, which you will see in the application book at pages 83 and 84. In particular, as well, provisions of a statute in section 45(2) of the same Act required by a mode of regulation that a council’s work be done in accordance with such a contract in the case of such a contract. Taken together, those are circumstances which could not possibly justify a reading down, let alone, a de facto abrogation of the general rule in section 37(1) of the Civil Liability Act. 

Now, in our submission, a weakness, with respect, in the reasoning to be found in both sets of reasons, particularly Justice Morrison’s, is the suggestion, perhaps implicit, that the terms of the contract operated so as to impose at common law a duty of care for which there could be attributable breach notwithstanding the comprehensive provisions of section 37(1) and that is before one comes to the disapplication provision in subsection (2), which is a separate issue.

That, in our submission, is quite impossible to contemplate.  Neither the statutory authorisation nor regulation of work under such a contract creates any duty of care owed to road users and neither, of course, does the contract between the particular local government entity and the State department, or the State, through its department, do anything to create an actionable duty of care owed to private road users.

Justice McMurdo, as you will see - for example, a culmination at application book 64, paragraph [130], saw the imposition of a duty of care with a scope or content including, in this case, the erection, clearly, of appropriate warning signs for the presence and later effect of water over the road, because of the potential, evidently, one might say obviously, to anyone familiar with country roads, presented of the road becoming unfit because of what I will call flood‑initiated defects.  The potential ‑ ‑ ‑ 

GORDON J:   Mr Walker, may I ask you a question?

MR WALKER:   Yes.

GORDON J:   Your focus on 37(1), is not the first inquiry about whether or not they have a function as a road authority to repair a road?

MR WALKER:   Yes, your Honour.  I confess, given the limited time, I have rather taken that for granted, but let me spell it out.

GORDON J:   It just maybe that I could shorten it – you do not contend, do you, that that function was not given to the Council under the road ‑ ‑ ‑ 

MR WALKER:   No, we do not.

GORDON J:   You do not contend, do you, that all of the provisions that are set out at paragraphs [60] to [69] on 54 and elsewhere, that the control included an obligation to maintain this road in a way which ensured that it was safe?

MR WALKER: No, I do not contest that those are terms that apply, but insofar as they applied by contract, they did not themselves create a duty of care owed to a stranger to the contract, contrary to the provisions of section 37(1). In other words, the comprehensiveness of 37(1) operates, and will always operate, if I can use the expression, in favour of the Council to dispense it from liability. So, no, of course we do not contest that we are a road authority, meaning an entity, responsible for carrying out any roadwork, and we are responsible because, by statute, we had entered into a contract which imposed those obligations on us, not directly statutory obligations, but we do not shirk the fact that we are an entity responsible. What we then say ‑ ‑ ‑

GORDON J:   Do you then contest that you as that authority, with that function, did not have knowledge of the particular risks, the materialisation of which came home to roost?

MR WALKER:   Very much so, your Honour.  That is the subsequent step in the reasoning.  The first step is, as your Honour has drawn to attention, what is it that liability is removed for in subsection (1), and it is for everything within the very comprehensive description of “any failure in relation to any function it has as a road authority”.

Now, be it assumed against us for the purposes of argument that the highly generalised propositions which in their own would appear to render us a guarantor or insurer of road safety, be it assumed that they describe functions, in fact, we say, properly understood, the contract calls for and permits only the exercise of functions by way of, put in general terms, monitoring and carrying out repairs…..reporting and the like, but, be it assumed against us that there was that generalised obligation, 37(1) spoke directly to it and there is no suggestion that there is any implied repeal or generalia specialibus non derogant of the relation between the provisions of any statute permitting the contract to be made and the statute covering the question of liability in relation to any function.

Plainly, 37(1) in its expression is intended to come in over the top and affect what would otherwise be liability emanating from a responsibility for carrying out any roadwork.  It is for those reasons that, as Justice Gordon has drawn to attention, of course the next step, which in any particular place might be critical, will be to consider the disapplication provisions of subsection (2).

Can I, however, before moving to subsection (2), remind your Honours that what is entailed consequentially in the approach by Justice McMurdo which, with great respect, correctly saw the maintenance contract as not in itself the source of the duty of care but rather creating a relationship between State and Council that may have some bearing on the relationship between Council and user, nonetheless, expressed himself, with respect, too generally in saying that by common law principles – that is, Brodie principles – there was a duty of care with particular content to appropriately warn that where there was a potential of the road becoming unfit by reason of conditions such as the seasonal water over the road.

That is, in our submission, a wrong approach for the same reason as one might see in the wild horses’ case in Western Australia, Jones v Commissioner of Main Roads in this Court in 2005 because such an approach – it cannot be applied only as a single point to the plaintiff’s particular claim.  That is an approach to a duty of care which must apply generally to all “water over the road” events, conditions and locations.  In our submission, it is most unlikely that the provisions of 37(1) could be construed as not intended, plainly, to repel any notion of imposing liability in such a case.

GORDON J:   Can I ask one more question about that and then I will be quiet?  Is that affected at all by the terms of the contract which recognised that the Council was indemnified by the State in relation to all of its work, including maintenance, except where the Council was negligent?

MR WALKER:   No, those are terms which can operate depending upon whatever regime from time to time applies to regulate tort liability owed to users.  So there will be, as it were, an adjustment of the incidence economically between State and Council, depending upon what I will call the external relation between Council and user, or for that matter, the…..possibility of an external relation between State and user, both regulated by tort.

The terms of those specific, what I will call funding risk allocation provisions between Council and State, cannot, with respect – and one does not really see this in either of the two sets of reasons – inform either the existence of a liability or the scope or content of the antecedent duty. In our submission, the error in proceeding in any such direction can be seen from its failure to observe the basic rule that Parliament had enacted in subsection (1) of section 37 is not liable.

So the questions of duty and from what it might spring, and with what scope or content, simply will not arise. It is intended to be “nip in the bud” litigation, rather than to come in only at a last stage of reasoning. It is for those reasons that the critical possibility of the disapplication provisions in section 37(2) are at the heart of the matter.

I have not mentioned Justice Burns.  Your Honours appreciate that the agreement with both sets of reasons makes it difficult, with respect, to discern a ratio.  That cannot be decisive for special leave, but it must weigh in favour as a contribution to the merits of a claim for special leave that, even only for Queensland, even only for Queensland wording, although the matter in question does go beyond what the…..this Court’s intervention would be appropriate to understand what these important and pervasive provisions mean.

Subsection (2) is obviously, as a matter of drafting and content and read purposively, to be seen as a subset or exception to subsection (1).  It could not possibly be seen sensibly to extend so generally as to render the primary rule only patchily applicable in many common cases, or worse very unpredictable in its application.

We draw to attention words which are enacted in other jurisdictions apart from Queensland verbatim – namely, the epithet “actual” before “knowledge” and the epithet “particular” before “risk”.  We do not shrink from the proposition that the particular risk was that which materialised ‑ and the word “materialised” is an important one – namely, the unfortunate plaintiff’s motorcycle colliding with the steep…..edges of the pothole which caused the danger, the pothole which was also hit but with much less damage by one other, but was happily not hit by others in the motorcycling party.

NETTLE J:  But why was not the particular risk the very risk of which the sign that was erected warned of?

MR WALKER:   That, of course, as your Honour has asked me is, we accept, a joint ratio in Justices Morrison and McMurdo against us.  Our answer to it is that that is not particular – it is general – and it is not something of which anything called actual knowledge in the sense of an exception to a repair liability would be understood.  There is always knowledge of the deterioration by time and natural and unnatural influences of road surfaces, ultimately – eventually, I should say, to the danger of road users.  That is a constant state of knowledge as to that potential ‑ ‑ ‑

NETTLE J:   Yes.

MR WALKER:   ‑ ‑ ‑ which is why people have monitoring obligations and then have priority programs and why, in this case, there was no finding of negligence by having failed to repair in the time that was available.

NETTLE J:   By contrast, was this not a specific identified risk as opposed to the generality that water might here or there, with the State, run over the highway and create a risk?

MR WALKER:   No.  What had happened was that the general risk of water over the road and its consequences developing over time and use, was no more solid in this case than in general, that is, there is no surprise in what is called a floodway for water across a road.  It is clear – it is inherent, always – a continuous state of knowledge – that that is a potential.  It is for those reasons that the materialising of a particular risk involves the pothole in question. 

Nothing materialises if you manage to ride safely a metre to the left of a pothole.  It did not materialise.  It is for those reasons, in our

submission, that it cannot be the generality of the potential for developing potholes, which is the ratio against us, that could answer the description of which factual knowledge was required.

That will, almost universally, apply every time there is – or one may say is about to be – after all, the Bureau of Meteorology assists here – a downpour which will – as they are designed to do – be handled by a floodway. That, in our submission, shows that subsection 37(1) oddly, and strangely, would have no intended protective effect with respect to the works of nature in various…..road systems which, in our submission, is exactly the purpose of section 37 in its basic rule to accomplish.

If I may just add this as a final sentence?  Your Honours will appreciate that this case raises the awkward question – there is no liability if the work party had not seen the water across this flood…..the couple of days before.  There is no liability if they had not done anything at all because, for example, they had other things to be doing and there….. 

It is only because what they did which, of course, recognised the generalised potential danger, was done inadequately so that the signs which were put up fell over leaving everyone, including users, in the position as if they had never seen it or never responded to it. That, in our submission, is a very odd state of affairs – redolent of implied terms of feasance and non‑feasance. There should be no such reading of section 37. May it please the Court.

NETTLE J:   Thank you.  Mr Holt, I wonder could you begin by directing yourself to the question of why it should be thought that the risk here was sufficiently specific to engage 37(2)?

MR HOLT:   Yes, thank you, your Honour, and that was what I had intended to do.  Could I ask the Court to go to application book 43 because the difficulty, with the greatest of respect, with our learned friend’s submissions is that the facts do not create a foundation for them because on the facts of this case one can in fact see the development of the risk from general to particular, and if I can take the Court’s attention in that regard to paragraph [9] – this is in the judgment of Justice of Appeal Morrison at application book 43. 

What one sees there it follows a description of the weather event which is not in issue and then at paragraph [9] note of an email being sent by Ms Galvin about the presence of low‑depth water over the highway in various locations, precisely that which our learned friend correctly says would be a common feature of country roads following flooding and that is the general risk, no doubt. 

Then, what one sees at paragraph [10] is Mr Smith making contact with the supervisor of the Council’s patching crew, Mr Everingham - this is in his evidence – “I said it needs to be inspected.  There is water over the road.  There is bitumen that has lifted off and the pavement is exposed.  It will require inspection potentially.  Just see what you think.” 

So, what that is identifying is the need to go beyond the general risk of some damage that occurs to a roadway, a well‑known – apparently in the public consciousness by virtue of low‑flooding water and to an actual inspection.  Then, that inspection leads to the question your Honour Justice Nettle asked of our learned friend which is that there was then a requirement identified by the Council to put up a specific warning sign identifying of a rough surface and, importantly then, at paragraph [13] Mr Doughty visited that floodway on three occasions, one readily infers for the purposes of identifying what response the Council might take to whatever was observed in those circumstances and notes at [13]:

he recorded that the floodway was “washed out from floodwater as a result to have potholes in the floodway to be dangerous to traffic so put rough surface sign up”.

Thus, even if there was something in the proposition, I would say, in fact I withdraw that – there is something in the proposition that of all that was known to Council was the existence of water generally over the road following a flood and generally speaking the fact that that creates the possibility of potholes, we have unquestionably crossed the Rubicon, in our respectful submission, and come to a specific risk when this very floodway was inspected on a number of occasions seemed to be resulting in these very specific phenomenon, that is the stripping of the pavement and the creation of potholes such as to be necessary to put up a “Rough Surface” sign because that floodway was dangerous. 

That is precisely, in our respectful submission, why the learned trial judge at first instance and then comparably the judges in the Court of Appeal concluded that there was – the particular risk here was not the specific pothole, which one has to be frank about it, was not known because it was under water and in the process of development but was, in fact, the risk of the continued development of such potholes and such phenomena in this particular area which had been identified as being at risk of that. 

The way we put it below and its language, I think, but I do not have the specific reference, it was then picked up in the Court of Appeal, was that what is required here is the identification of a particular risk not the identification of a particular hazard and the risk here was properly put without any straining of its language as being the development of a process of stripping of the pavement, in effect, and ultimately it may well be – I am sorry, your Honour.

GORDON J:   Mr Holt – that is fine, do you rely upon what follows from [13] and [14], because when I read the next bit of those two paragraphs, it seems as though it does become a particular risk, specific risk, by reference to the pothole in question, because the water recedes, and one has identification there by way of knowledge and a need for the signage before the accident, of something which is about 30 to 40 millimetres deep.

MR HOLT:   I ought say, your Honour, consistent with my duty to assist the Court, there was evidence, and it may not be apparent on the application book, that certainly called into question whether that was the specific pothole into which the respondent went, and I could not properly say that that is the pothole, because that was not what the evidence permitted.  If that were so, then we would be a long way past the Rubicon, but in our submission we do not need to rely on that because we are already over the Rubicon at the point that the…..actually occurring has developed. 

But that pothole, which your Honour identifies, or identifies from the reasons is, of course, no more than a manifestation of the continued existence of a particular risk on the highway in those circumstances. Thus, in our respectful submission, one does not even need to get to the questions which are now said to arise in terms of the relationship between section 37(1) and a finding of the existence of duty of care, because we can, in effect…..run around those points by the concurrent conclusions that the particular risk here was in fact the development of the rough roadway, and a manifestation of that risk was the accident which occurs in relation to a specific pothole, but one which would plainly have been contemplated by the process, as indeed is an obvious result of the process.

Our learned friend notes the word “manifestation” deployed in favour of the applicant’s argument but, in our respectful submission, in fact what that tends to indicate is a recognition within that legislative provision to feel it tied to the notion of a particular risk, which is that one can have a risk where the manifestation of that risk occurs at a later period in time, that is, that it might involve some kind of process in between. 

With respect, one only needs to flip it around the other way, because essentially what is put against us is some kind of, no pun intended, a floodgates argument, which suggests that the sort of broader liability will broaden the exception to section 37(1) such as to render section 37(1) inappropriately broad.

In our respectful submission, what would happen if our learned friend’s construction were accepted is that one would overly limit the

exception in subsection (2). When one looks at the policy of the provision, the notion that these facts, that is, where a road authority actually sees damage to a road occurring, actually identifies that that damage will continue and is dynamic, and actually identifies, positively, that that will create a danger to road users, that that is not within the legislative policy of section 37(2), in our respectful submission is effectively unarguable, with the greatest of respect to my learned friends.

I think those are the submissions we would seek to make in respect of 37(2).  Would it assist the Court if I went otherwise…..section 37?

NETTLE J:   No, I do not think we need to hear you further on that, thank you, Mr Holt.

MR HOLT:   If the Court pleases.

NETTLE J:   Mr Walker, any reply?

MR WALKER:   Your Honours, in our submission, the word “manifestation” in subsection (2) is obviously a reference to the familiar necessity in order for there to be actionable loss but there not simply be the possibility inherent in the word “risk” but that the possibility becomes a certainty that is – as is sometimes put – the risk falls in.  That is all that matters.  It is not words which indicate – that are requiring further development of dangerous conditions before any plaintiff could exist is encompassed in those words.  It is for those reasons, in our submission, that the important question, going beyond the interests of the parties to this case, arises – notwithstanding there are matters to be argued on both sides.  May it please the Court.

NETTLE J:   Thank you, Mr Walker.

In this matter, the Court is not persuaded that an appeal would enjoy sufficient prospects of success to warrant the grant of special leave.  The application is dismissed, with costs.

MR WALKER:   May it please the Court.

MR HOLT:   May it please the Court.

NETTLE J:   Thank you, gentlemen.  The Court will now adjourn.

AT 10.59 AM THE MATTER WAS CONCLUDED